[00:00:00] Speaker 04:
Mr. Kresak.

[00:00:02] Speaker 04:
I probably didn't pronounce that correctly, but you can correct me.

[00:00:06] Speaker 04:
Okay, you may proceed.

[00:00:11] Speaker 03:
I still didn't get your name.

[00:00:12] Speaker 03:
It's what?

[00:00:14] Speaker 02:
Thank you.

[00:00:21] Speaker 04:
May proceed.

[00:00:24] Speaker 02:
May it please the court.

[00:00:25] Speaker 02:
My name is Matthew Krasacek, and I represent Victor Fuentes.

[00:00:29] Speaker 02:
I would like to reserve three minutes for rebuttal.

[00:00:32] Speaker 02:
Before the IJ, my client displayed clear indicia of incompetency.

[00:00:36] Speaker 02:
He told the IJ that he suffered from serious mental disorders, including schizophrenia, bipolar disorder, and anxiety attacks.

[00:00:45] Speaker 02:
He told the IJ that he was taking psychiatric medication to deal with these disorders, that he suffered from memory loss and a lack of concentration, and that he engaged in self-harm.

[00:00:55] Speaker 02:
Further, as his attorney flagged, his answers were frequently non-responsive and disjointed.

[00:01:01] Speaker 02:
Given these clear and disheven competency, the IJ had a duty to assess competency under the rigorous procedural requirements prescribed by the BIA.

[00:01:11] Speaker 02:
But the IJ departed from these requirements in at least two key ways.

[00:01:16] Speaker 02:
First, the IJ was obligated to request a copy of my client's medical records.

[00:01:20] Speaker 02:
She never did so here, and the government has not rebutted this straightforward error.

[00:01:24] Speaker 01:
Okay, when you say obligated, your client's lawyer didn't request the IJ to do that, correct?

[00:01:34] Speaker 01:
Correct.

[00:01:35] Speaker 02:
She put the issue of mental competency at this discretion.

[00:01:38] Speaker 01:
She did not say to the IJ, my client is incompetent, right?

[00:01:44] Speaker 02:
She said, Judge Bennett, she said that my client suffers from mental disorders, I'll put it at your discretion.

[00:01:49] Speaker 01:
Right, but she didn't say my client is incompetent.

[00:01:53] Speaker 02:
I think she didn't say, she didn't represent that clearly, but she did, again, put it at the discretion.

[00:01:58] Speaker 01:
And she didn't bring up the MAM case.

[00:02:01] Speaker 02:
She did not bring up the MAM case precisely.

[00:02:04] Speaker 03:
Well, then did it—setting aside whether she cited the case name or not, let's talk about Calderon-Rodriguez, where we said that the IJ abuses its discretion if it doesn't make sure that the government has met its burden of producing records that are in its cussie that go to the—go to competency.

[00:02:20] Speaker 03:
Did the IJ do that here?

[00:02:22] Speaker 02:
No, Judge Christian, that's exactly our point, is that this case is, this MAM is very clear that this is an affirmative obligation, not just, not on counsel, but on DHS and the IJ to request and provide these records, and that was never provided here by the DHS or the IJ.

[00:02:38] Speaker 03:
Okay, but I agree with Judge Bennett that the case name was never cited, right?

[00:02:43] Speaker 02:
Right.

[00:02:43] Speaker 03:
Have we required that?

[00:02:45] Speaker 02:
No, and I think this court's exhaustion jurisprudence says there's no need to use precise legalese.

[00:02:52] Speaker 02:
The fact that competency was before the IJA is enough to exhaust the MAM issue.

[00:02:58] Speaker 03:
I think that's right, but you're skipping a step if I could.

[00:03:01] Speaker 03:
I agree that our exhaustion jurisprudence is broad.

[00:03:05] Speaker 03:
The question is whether the agency had a fair chance to rule on the issue.

[00:03:08] Speaker 03:
Was the issue teed up?

[00:03:10] Speaker 03:
So what's your best argument that it was teed up, please?

[00:03:13] Speaker 02:
So if you look at what the IJA was doing, she was applying some kind of competency framework.

[00:03:17] Speaker 02:
She clearly understood that there was a competency inquiry to be had.

[00:03:23] Speaker 02:
It's most of her opinion below and a big focus of the transcript.

[00:03:27] Speaker 02:
So our position is if she's applying a competency framework, it's not unreasonable to ask her to apply the framework prescribed by the BIA for this exact situation.

[00:03:36] Speaker 03:
What should she have done that she didn't do?

[00:03:38] Speaker 02:
So a few things.

[00:03:39] Speaker 02:
The medical record issue is one obviously we've talked about, but we recognize that MAM gives IJ some latitude here, but what she did was far below even those minimum standards that MAM prescribes.

[00:03:51] Speaker 01:
But MAM says, in this case, there's good cause to believe that the respondent lacks sufficient competency

[00:03:58] Speaker 01:
The record includes several psychiatric reports, and during criminal proceedings, he was found unfit.

[00:04:05] Speaker 01:
Before the IJ, he had difficulty answering questions.

[00:04:09] Speaker 01:
So here, is it your contention that, and I don't want to make light of your client's illness, schizophrenia is a very, very serious medical issue, but are you saying there are magic words that if someone is diagnosed

[00:04:28] Speaker 01:
with schizophrenia that that automatically means that the IJ, in the absence of request, has to do an MAM analysis?

[00:04:38] Speaker 02:
So I think it would, we would say that schizophrenia, I think a history of mental illness alone, and MAM says this, if you have some history in your past of mental illness, that's not going to overcome that minimum presumption to show and dish of incompetency.

[00:04:53] Speaker 02:
I think if there was active,

[00:04:55] Speaker 02:
an ongoing schizophrenia like my client displayed, not just that, but bipolar disorder, anxiety attacks.

[00:05:02] Speaker 02:
memory issues, all the things that were in issue of incompetency here, that does trigger the MAM duty to take some steps to assess.

[00:05:09] Speaker 01:
But the case doesn't say that, right?

[00:05:11] Speaker 01:
The case doesn't say that simply suffering from mental illness, and in this case, in MAM, if I'm remembering correctly, there was information in the record that the then respondent wasn't getting his medication.

[00:05:28] Speaker 01:
Here, there's no indication that he wasn't getting his medication, right?

[00:05:31] Speaker 02:
So that would be certainly something that the IJA should have asked about.

[00:05:35] Speaker 02:
I mean, that's a basic orienting question about... Could I back up?

[00:05:38] Speaker 03:
Because you're losing me about what it is you think that MAM requires.

[00:05:43] Speaker 02:
Sure.

[00:05:44] Speaker 03:
So... First of all, do you think that this... I take it, you think this record raised indicia of incompetency.

[00:05:51] Speaker 03:
Is that right?

[00:05:52] Speaker 02:
Right.

[00:05:52] Speaker 03:
Okay.

[00:05:53] Speaker 03:
And you've explained why you think that.

[00:05:54] Speaker 03:
But once that happens, what do you think the law requires?

[00:05:57] Speaker 02:
Right.

[00:05:57] Speaker 02:
So we would say two things.

[00:05:59] Speaker 02:
They have to request the medical records.

[00:06:02] Speaker 03:
Who's the they in your sentence?

[00:06:03] Speaker 02:
So sorry.

[00:06:04] Speaker 04:
The immigration judge has an independent obligation.

[00:06:07] Speaker 02:
Correct.

[00:06:07] Speaker 02:
And DHS.

[00:06:08] Speaker 04:
Under Calderon Rodriguez.

[00:06:10] Speaker 03:
Right.

[00:06:10] Speaker 02:
Correct.

[00:06:10] Speaker 03:
And then what?

[00:06:12] Speaker 02:
And then, so again, we recognize that IJs have some latitude, but the precedent here is very clear.

[00:06:18] Speaker 02:
They have to take some measures.

[00:06:20] Speaker 02:
So what are those measures?

[00:06:22] Speaker 02:
We would contend that it's a spectrum.

[00:06:25] Speaker 02:
On the low end, there is very short and direct questioning.

[00:06:28] Speaker 02:
That's what MAM says.

[00:06:29] Speaker 02:
On the high end, you can order a continuance for a medical evaluation, et cetera.

[00:06:36] Speaker 02:
So we think our clients, in dish of incompetency, were severe enough that it should have been on the high end.

[00:06:42] Speaker 02:
Setting that aside, the low end is short and direct questioning.

[00:06:46] Speaker 02:
that should have asked basic orienting questions.

[00:06:49] Speaker 03:
Well, there's a question here.

[00:06:50] Speaker 03:
Do you remember not understanding any questions the asylum officer asked?

[00:06:54] Speaker 03:
The answer was, I don't remember.

[00:06:56] Speaker 02:
Well, that was all the more indicia than competency.

[00:07:01] Speaker 04:
But I would say- Let me ask you about your reference.

[00:07:04] Speaker 04:
There's a reference in here that petitioner says DHS provided him with over 1,000 pages of medical records.

[00:07:12] Speaker 04:
Was this following this proceeding?

[00:07:16] Speaker 02:
That was following, this was on our request.

[00:07:18] Speaker 04:
Your request, so afterwards you discovered that there were a thousand pages of medical records that should have been produced and the IJA should have taken them into consideration?

[00:07:30] Speaker 02:
That's our position, yes.

[00:07:31] Speaker 02:
So I can confirm that these records exist.

[00:07:34] Speaker 04:
I know, are they part of the record?

[00:07:38] Speaker 04:
Our record?

[00:07:39] Speaker 02:
No, they're not part of, so.

[00:07:40] Speaker 04:
So we can't look at them.

[00:07:41] Speaker 04:
No.

[00:07:42] Speaker 04:
But we could remand and the IJA could look at them.

[00:07:46] Speaker 02:
That would be certainly something that would be required from MAM on remand if you remanded for proceedings consistent with that.

[00:07:54] Speaker 04:
I notice on your brief it says that he is detained at the time of the briefing.

[00:08:00] Speaker 04:
Is he still detained?

[00:08:01] Speaker 02:
That's right, Your Honor.

[00:08:02] Speaker 04:
And was he detained at the time of the hearing?

[00:08:04] Speaker 02:
That's right.

[00:08:06] Speaker 03:
My understanding is he'd been detained for 10 months.

[00:08:09] Speaker 03:
What I can't tell is whether the records that Judge Wardlaw was just inquiring about, I agree with her, we don't have them, right?

[00:08:15] Speaker 03:
Okay, so can we tell from our record whether those were from a prison or were those generated while he was in detention?

[00:08:22] Speaker 02:
You can't tell from your record.

[00:08:24] Speaker 02:
I can say that they're DHS, yeah.

[00:08:27] Speaker 03:
If we can't tell, we can't tell.

[00:08:28] Speaker 03:
I just wanted to make sure I wasn't missing something, so I appreciate that.

[00:08:31] Speaker 03:
I don't have anything further.

[00:08:33] Speaker 04:
Where did I get this?

[00:08:35] Speaker 04:
I have a note.

[00:08:36] Speaker 04:
Petitioner says he obtained, is that in your briefing?

[00:08:40] Speaker 02:
That's in our briefing, yes.

[00:08:41] Speaker 02:
That's in our opening brief.

[00:08:42] Speaker 03:
That was in conjunction with a request after the IJ ruled, a request that, a special motion, I think, that you made to request remand for a new interview.

[00:08:54] Speaker 02:
That was that was something that we requested after taking over the representation from DHS.

[00:09:00] Speaker 03:
Did you get a ruling on that motion?

[00:09:02] Speaker 02:
No, we that was over a year ago and we haven't that hasn't garnered any any follow-up.

[00:09:07] Speaker 04:
Okay Do you want to reserve the rest of your time?

[00:09:11] Speaker 02:
Sure.

[00:09:12] Speaker 02:
I'll reserve my time.

[00:09:13] Speaker 02:
Thank you.

[00:09:13] Speaker 04:
Thank you Miss Morgan

[00:09:33] Speaker 05:
Good morning, your honors.

[00:09:34] Speaker 05:
May it please the court?

[00:09:35] Speaker 05:
I'm Carmel Morgan on behalf of the respondent, the U.S.

[00:09:37] Speaker 05:
Attorney General.

[00:09:39] Speaker 05:
Mr. Fuentes had counsel throughout these proceedings.

[00:09:45] Speaker 05:
These proceedings are different from the proceedings that the court has addressed MAM in its published decisions.

[00:09:55] Speaker 04:
Are you saying that MAM does not apply to this kind of proceeding?

[00:10:00] Speaker 05:
I can now say that MAM, the government's position is that MAM does not apply in reasonable fear proceedings.

[00:10:09] Speaker 04:
Why can you now say that?

[00:10:13] Speaker 05:
I asked EOIR to give me their opinion on that, which I got yesterday afternoon on my way here.

[00:10:22] Speaker 03:
Why is it that MAM would not apply and our president and Calderon Rodriguez would not apply?

[00:10:28] Speaker 05:
Yeah, it's not in my brief, but if you'll let me explain, I can share what Eeyore shared with me.

[00:10:35] Speaker 04:
I don't think we can share that because it's not in the record.

[00:10:40] Speaker 04:
It's not a binding opinion.

[00:10:43] Speaker 04:
It's some advice that you got within your agency.

[00:10:47] Speaker 04:
I don't think that's appropriate.

[00:10:50] Speaker 03:
Well, is your position, going back to Calderon Rodriguez, I just want to give you a fair chance to respond, because that is in the briefing.

[00:10:56] Speaker 03:
And it seems to me to be squarely applicable and problematic for the government, because it does seem to me that our precedent requires the IJ to affirmatively inquire and make sure that the government has produced records that, if it has any, or not just records, evidence that it has that might pertain as to the issue of competency.

[00:11:16] Speaker 03:
The government didn't do that here.

[00:11:17] Speaker 03:
Is it your position that the government didn't need to do that?

[00:11:21] Speaker 05:
That's not exactly my position, I don't think.

[00:11:24] Speaker 03:
Are you free to tell us what your position is?

[00:11:26] Speaker 03:
Because it's going to be pretty tough for us to do our job if the government doesn't tell us what its position is.

[00:11:31] Speaker 04:
Do you have some opinion or something you could point to or citation?

[00:11:34] Speaker 04:
You could do that.

[00:11:35] Speaker 04:
I do.

[00:11:38] Speaker 05:
First of all, if you look at MAM, MAM is really strongly grounded in the removal statutes.

[00:11:45] Speaker 05:
And so in MAM, when they're talking about this independent obligation,

[00:11:51] Speaker 05:
They reference a statute which applies to removal proceedings, and it applies to DHS counsel.

[00:11:59] Speaker 03:
MAM says that it replies to immigration proceedings writ large, and it's the BIA's own rule.

[00:12:05] Speaker 03:
And competency was raised here, or at least that's my definite reading of the record.

[00:12:10] Speaker 03:
And so I'm trying to figure out whether it's the government's position that it didn't have to proffer evidence it had in its possession that goes to competency.

[00:12:23] Speaker 04:
The statute that MAM refers to is for... Yeah, but what MAM says is the test for determining whether an alien is competent to participate in immigration proceedings is whether he or she has a rational, factual understanding.

[00:12:39] Speaker 04:
It does not limit it to removal in any way.

[00:12:45] Speaker 05:
not the part you just quoted, but several other pieces reference cross-examining witnesses, references a notice to appear, and this very specific statute refers to the obligation of DHS counsel to provide this information.

[00:12:59] Speaker 05:
And I guess what I would say to you is I'm not quite sure how this is triggered in

[00:13:04] Speaker 05:
reasonable fear proceedings because DHS Council isn't present.

[00:13:09] Speaker 03:
Before the IJ, the blue brief is squarely focused on the IJ.

[00:13:13] Speaker 03:
This had been raised.

[00:13:15] Speaker 03:
You can argue with me about that if you want.

[00:13:17] Speaker 03:
That's fair pushback, but I'm trying to ask you to assume

[00:13:21] Speaker 03:
for the sake of argument that it was raised, that both the asylum officer and the IJ recognized that was an issue.

[00:13:27] Speaker 03:
They certainly inquired about it.

[00:13:29] Speaker 03:
The IJ ruled on it.

[00:13:31] Speaker 03:
But what would be helpful to me is to understand whether the government is taking issue with our precedent in Calderon, Rodriguez, that it had a duty to come forward with the evidence that was in its possession.

[00:13:42] Speaker 03:
I can't tell what your response is on that.

[00:13:48] Speaker 03:
MAM quotes a statute that refers to... So you realize I'm asking about, not about MAM, I'm asking about Calderon Rodriguez.

[00:13:56] Speaker 03:
Okay.

[00:13:57] Speaker 05:
Calderon Rodriguez is looking at MAM and there's a statute that refers to the obligation of DHS counsel.

[00:14:03] Speaker 05:
These are non-adversarial proceedings, so DHS counsel isn't present.

[00:14:08] Speaker 01:
Council, am I correct that one of your arguments as to why the government's position is this claim isn't exhausted is because then respondents council didn't raise the MAM issue and so the IJ never had an opportunity to pass in the first instance on whether MAM applied?

[00:14:30] Speaker 03:
That's exactly the government's position.

[00:14:31] Speaker 03:
But the IJ did pass on competency counsel.

[00:14:33] Speaker 03:
Can you point to any case where we have said that a matter was unexhausted, where the IJ actually ruled on it?

[00:14:40] Speaker 05:
I can point to a case that's somewhat analogous.

[00:14:44] Speaker 03:
OK, what's that?

[00:14:44] Speaker 05:
It's not in my brief, but it's Benedicto, which is another case that discusses MAM.

[00:14:52] Speaker 05:
It's a published decision.

[00:14:53] Speaker 05:
Could you give me the citation?

[00:14:55] Speaker 05:
I can, if you hold on just a second.

[00:15:02] Speaker 05:
It's 12F41049.

[00:15:06] Speaker 05:
In that decision, the court recognized that competency was clearly addressed.

[00:15:15] Speaker 05:
Again, these weren't reasonable fear proceedings in Benedicto.

[00:15:18] Speaker 05:
It was separate removal proceedings.

[00:15:24] Speaker 05:
On the exhaustion issue, the court found that an issue that was raised by amicus was not exhausted, where amicus had said apparently they felt like additional safeguards were necessary, and the court did not address that because they found the issue was not exhausted.

[00:15:42] Speaker 01:
there are two separate exhaustion issues here, whether competency was exhausted and whether the applicability of MAM was, whether there is the, whether the applicability of MAM and reasonable fear was exhausted.

[00:15:57] Speaker 01:
Is that correct?

[00:15:58] Speaker 05:
Yes, I do agree with you there.

[00:16:01] Speaker 01:
Well, I'm just stating what my understanding is of your position.

[00:16:04] Speaker 04:
I need to get you to tell him what your position is and if he's understanding it correctly.

[00:16:11] Speaker 05:
On the latter,

[00:16:13] Speaker 05:
Absolutely, that's the government's position, is that the specific framework of MAM was not raised before the agency.

[00:16:19] Speaker 05:
The specific framework, as opposed to the issue of competency?

[00:16:24] Speaker 05:
On the issue of competency, I think there's also a question because

[00:16:29] Speaker 05:
Mr. Fuente's counsel didn't say she felt like he was incompetent, that she couldn't represent him, that she couldn't communicate with him, that he didn't understand the questions.

[00:16:37] Speaker 03:
The IJ ruled on competency, right?

[00:16:40] Speaker 03:
And is it your position that competency was, in addition to competency, were not triggered here after the IJ had been informed they had schizophrenia and bipolar and took medication?

[00:16:50] Speaker 03:
Here's what's frustrating to me.

[00:16:51] Speaker 03:
I want to give you a chance to respond to this.

[00:16:53] Speaker 03:
My understanding of this, on the one hand, this matter of MAM and its progeny is a safeguard for the individual.

[00:17:01] Speaker 03:
But on the other hand, it safeguards the integrity of the expedited removal process.

[00:17:06] Speaker 03:
Otherwise, we get to the very end.

[00:17:08] Speaker 03:
There's an issue raised.

[00:17:09] Speaker 03:
If the government hasn't come forward, if the IJ hasn't said, get us these documents, and we do it all over again.

[00:17:15] Speaker 03:
There's an IAC claim, and we start back up and do it all over again.

[00:17:19] Speaker 03:
So it seems to be is a very low bar to be competent for this type of proceeding.

[00:17:23] Speaker 03:
We certainly understand that if someone is found to be competent or even to be lacking and some additional help is required, that this person is very likely going to be removed.

[00:17:36] Speaker 03:
I don't think we're under any misunderstanding about that.

[00:17:40] Speaker 03:
But this seems like a very low bar.

[00:17:42] Speaker 03:
And yet the checklist that the IJ goes through doesn't include mention of this.

[00:17:46] Speaker 03:
And that just seems like a recipe for disaster.

[00:17:49] Speaker 03:
So it is frustrating indeed to see the government's position on this.

[00:17:55] Speaker 03:
It seems to me there's a very strong incentive to get, to make sure that we get those records and that it's fairly adjudicated on the front end.

[00:18:04] Speaker 03:
Do you have any indication, can you shed any light on why these records weren't produced?

[00:18:11] Speaker 05:
I think one reason was that council didn't ask for them.

[00:18:16] Speaker 04:
Well, they asked for them now.

[00:18:18] Speaker 04:
This proceeding's still ongoing, and they've asked for them now, and they say it's been a year, and they haven't gotten them.

[00:18:26] Speaker 05:
Oh, I think they did get the records.

[00:18:30] Speaker 03:
He's had a motion pending for a year that he respond, that Judge Lord was referring to, a motion to request a re-interview, given that there's all these records, and he said he's been waiting for a year.

[00:18:40] Speaker 03:
We don't know that, but that was just represented.

[00:18:43] Speaker ?:
Right.

[00:18:43] Speaker 05:
Because it's not on the record, I don't know what those medical documents.

[00:18:49] Speaker 04:
So you haven't seen the documents?

[00:18:51] Speaker 04:
Oh, no.

[00:18:52] Speaker 04:
I have not seen any.

[00:18:53] Speaker 04:
Wait.

[00:18:54] Speaker 04:
So the agency you represent gave these documents to Petitioner, and Petitioner has them, and you don't?

[00:19:01] Speaker 04:
Correct.

[00:19:03] Speaker 04:
Doesn't that strike you as odd?

[00:19:05] Speaker 03:
It does.

[00:19:07] Speaker 03:
Were they not attachments to his request for the supplemental interview?

[00:19:13] Speaker 05:
I don't have the records for the request for the supplemental interview.

[00:19:17] Speaker 04:
OK.

[00:19:17] Speaker 04:
Why not?

[00:19:18] Speaker 04:
I don't understand that.

[00:19:19] Speaker 05:
They were not part of the record on appeal, which is what I get.

[00:19:24] Speaker 04:
So you just have the appellate record.

[00:19:26] Speaker 04:
Right.

[00:19:27] Speaker 04:
Nothing else.

[00:19:28] Speaker 04:
That's right.

[00:19:29] Speaker 04:
Could you have asked to see the other records?

[00:19:33] Speaker 04:
I suppose I could have asked.

[00:19:35] Speaker 04:
Yes, Your Honor.

[00:19:36] Speaker 04:
At the heart of this case.

[00:19:41] Speaker 05:
I think it isn't the heart of this case, if I may, because competency is fluid.

[00:19:48] Speaker 05:
And the immigration judge had a transcript of the proceeding before the asylum officer, during which the petitioner represented his position very well about what his fear was.

[00:20:03] Speaker 05:
He had many details.

[00:20:05] Speaker 05:
I didn't find it confusing or disjointed.

[00:20:09] Speaker 05:
And because this was raised, the immigration judge I do think felt like this was perhaps indicia of incompetence because she asked him a series of questions which confirmed to her again that he understood, that he told the same story over again.

[00:20:27] Speaker 05:
And so even if she had those records, it would amount to harmless error.

[00:20:33] Speaker 01:
Well, counsel, I need to push back on that.

[00:20:37] Speaker 01:
I mean, I think that one of the unfortunate things about mental illness, including schizophrenia, is that somebody does have the ability to sound rational, even with a serious mental illness, but that doesn't mean that they are.

[00:20:59] Speaker 01:
So, I mean, if we're looking at just a priori making a determination of competency for someone who is seriously mentally ill, I find it difficult to understand how, if we get to that question,

[00:21:14] Speaker 01:
an immigration judge, a magistrate judge, or anyone else can make that decision without looking at at least some of the medical records, including the medication records, because schizophrenia can be well controlled, but that doesn't mean just because a person sounds logical that it is well controlled.

[00:21:35] Speaker 05:
I think the most salient point was his behavior in court and his own admission before the asylum officer that he was feeling good and he was taking his medication.

[00:21:48] Speaker 05:
There's a presumption of competency and the bar is actually pretty high.

[00:21:58] Speaker 05:
You have to show that you don't understand the nature and object of the proceedings, and that you can't assist your counsel, which his counsel never said that was the case.

[00:22:09] Speaker 03:
Did the IJ inquire?

[00:22:10] Speaker 03:
You've indicated, and I appreciate your candor, that there were some indicia here.

[00:22:14] Speaker 03:
Is it your position that the IJ inquired about whether this individual understood the nature of the proceedings?

[00:22:21] Speaker 03:
We've given specific lists of questions that

[00:22:23] Speaker 03:
not a recipe, but the types of questions that would be helpful.

[00:22:27] Speaker 03:
I don't see them here in the record.

[00:22:28] Speaker 03:
I just see the one that I mentioned, which is, I just repeated about whether he had trouble remembering and he said he doesn't remember.

[00:22:37] Speaker 03:
So that wasn't helpful.

[00:22:38] Speaker 03:
But I don't see the kinds of questioning.

[00:22:40] Speaker 03:
And again, that's why I described this as a very low bar.

[00:22:43] Speaker 03:
It doesn't take much to be deemed competent under this standard, and it doesn't take much to inquire.

[00:22:48] Speaker 05:
Well, the IJ had the transcript of the proceeding before the asylum officer, during which the asylum officer confirmed that he had received a paper that explained the proceedings, asked if he had received that and understood it.

[00:23:03] Speaker 05:
He said yes, and he had his counsel with him, who did interject at one point and ask if the asylum officer would make

[00:23:11] Speaker 05:
one of the questions simpler, more elementary, and the asylum officer did so.

[00:23:17] Speaker 05:
Counsel didn't make any other requests of the asylum officer or the immigration judge with regard to competency.

[00:23:26] Speaker 05:
She said, I will leave it at your discretion to the immigration judge.

[00:23:30] Speaker 03:
The one thing she did offer was to repeat the diagnoses and then said she would leave it to the judge's discretion.

[00:23:36] Speaker 03:
I agree with you.

[00:23:37] Speaker 03:
Hence the concern about if this were sufficient,

[00:23:41] Speaker 03:
And again, if this were sufficient, it seems like it's a recipe for asking us to do these proceedings all over again.

[00:23:47] Speaker 03:
On the back end, it'll just be called an IAC proceeding.

[00:23:52] Speaker 05:
I guess I've given this a lot of thought.

[00:23:55] Speaker 05:
And there are many diagnoses.

[00:23:59] Speaker 05:
So for example, someone says, I have been depressed, but I'm on medication and I'm feeling good.

[00:24:05] Speaker 05:
Is that a situation for which the government?

[00:24:11] Speaker 03:
It's certainly fact-specific.

[00:24:13] Speaker 03:
I think our case law recognizes that.

[00:24:14] Speaker 03:
And it's a fluid situation.

[00:24:16] Speaker 03:
So I appreciate that.

[00:24:22] Speaker 04:
Any further questions?

[00:24:23] Speaker 04:
All right, thank you, Council.

[00:24:27] Speaker 04:
Mr. Crescio.

[00:24:37] Speaker 02:
Just a few quick points, Your Honors.

[00:24:39] Speaker 02:
I think the exchange with opposing counsel about the reasons for not turning over the medical records and why that violates Calderon Rodriguez was telling.

[00:24:46] Speaker 02:
The government really has no reason why they didn't turn these over.

[00:24:50] Speaker 02:
They rely on exhaustion and an argument that MAM doesn't apply.

[00:24:54] Speaker 02:
First, as to exhaustion, there are no cases that the government points to that operate exhaustion that the way they would have it where you have to cite the specific legal framework for competency.

[00:25:07] Speaker 02:
In fact, we have at least an unpublished case exactly on all fours here where it says Bailey versus Garland, where it says raising competency was enough to put the IJ on notice of MAM.

[00:25:18] Speaker 02:
And also that more broadly, the government's exhaustion position is just inconsistent with how the MAM framework works.

[00:25:27] Speaker 02:
If you look at a matter of JSS, it's another BIA opinion, it says that the MAM framework follows the competency framework of civil habeas proceedings.

[00:25:36] Speaker 02:
And that says the burden on the person seeking competency measures is just to put the court on notice of competency.

[00:25:44] Speaker 02:
After that, it's an inquiry for the court.

[00:25:47] Speaker 02:
So to say that, surely Mr. Fuente has satisfied that minimal burden of putting the IJ on notice.

[00:25:54] Speaker 03:
Counsel, if we decide that somebody needs to look at these records to decide if there's a problem, what is your position at that point?

[00:26:04] Speaker 03:
What ruling should we enter?

[00:26:06] Speaker 02:
I think remanding consistent for proceedings with MAM would be consistent with sending it back to the IJ and getting those records and redoing the competency analysis with those records and with a more searching inquiry.

[00:26:19] Speaker 01:
Would the analysis be of the competency at the time the original reasonable fear determination was made or is the competency determination when it goes back or would it be both in your view?

[00:26:35] Speaker 02:
Judge Bennett, I think MAM is pretty clear on this that given the nature of mental illness, it's not static.

[00:26:41] Speaker 02:
It has to be assessed at each stage of the proceedings.

[00:26:43] Speaker 02:
So our position is that if you sent it back, it would be...

[00:26:46] Speaker 02:
competency at the time of the inquiry that's being made.

[00:26:50] Speaker 01:
So even if the record showed that your client was competent at the time of the actual reasonable fear interview, there would have to be a separate competency determination at the time of the remand.

[00:27:08] Speaker 01:
Why would that be?

[00:27:10] Speaker 02:
I think it would be impossible to say whether my client was competent because the competency inquiry

[00:27:16] Speaker 02:
the judge for failure to obtain the medical records and for failure to ask these basic questions.

[00:27:22] Speaker 02:
We can't assess

[00:27:24] Speaker 02:
She didn't suss out the relevant information of whether my client was competent then.

[00:27:28] Speaker 02:
So it would be, we can't assess whether he was competent then when the basic questions to suss out that information were asked.

[00:27:34] Speaker 01:
So your view is that if we were to agree with you, that whole proceeding is out the window and there would have to be a de novo reasonable fear hearing after a determination of competency?

[00:27:49] Speaker 02:
Yes.

[00:27:50] Speaker 02:
Yes, Judge.

[00:27:54] Speaker 02:
If there are no further questions, we ask the court to affirm the petition, or to grant the petition for review.

[00:27:59] Speaker 02:
Thank you.

[00:28:00] Speaker 04:
Thank you.

[00:28:00] Speaker 04:
Thank you.

[00:28:00] Speaker 04:
And I want to thank you, Mr. Prasadjotjian.

[00:28:04] Speaker 04:
I cannot pronounce your name, because the way you pronounce it is so different than how it looks on the paper.

[00:28:10] Speaker 04:
But anyway, you and your firm, Jones State, for your pro bono representation.

[00:28:14] Speaker 04:
Thank you very much.

[00:28:15] Speaker 04:
Thank you.

[00:28:18] Speaker 04:
OK.

[00:28:18] Speaker 04:
Gwentis versus Garland is submitted.